1304 Responses

Also, during the interview – while the boycott was on – Walsh and Boyens said that the lifting of the boycott may not be enough to save the production, that the damage was already done and that NZ will have to show that there will be a stable environment for the production.

Just not swallowing Helen Kelly’s retcon either – but if it does repair her own dented credibility

She seems to have come out of this pretty well. She came in late, caught some flak at the time for fronting a crappy battle, and her statements at the time now largely seem to have been proven to be true. Everyone else has screwed up or lied or given away the ranch.

The large majority of film workers don't want to be employees and rather like claiming a third of the mortgage against their tax. As I said above, this gives them the ultimate excuse when IRD questions their tax status.

Every time these fabulous tax advantages are bandied about they become inflated a little bit more. Who is it who declares A THIRD OF THEIR HOUSE as a home office, really? Aren't we just talking about somebody who's lucky not to have been audited yet?

Also, you don't claim a third of your mortgage. You can claim a third of your interest. And you can elect to depreciate the home office portion, but then you have to give the money back when you sell the house or cease to be self-employed.

Thank you Giovanni!Steam was coming out my ears about some of those gain figures - there seemed to be a distinct inclination to call EVERY self-employed/contractor person as way better off than an employee. Not so, good people, not so at all (speaking as a person who has been self-employed for the past 27 years.) It is a hard and not-financially-beneficial row to hoe - and I suspect rather more than one of us does it because we love what we do.

Yes, that evil mr Bryson, who reckoned he should be entitled to the rights of an employee seeing that he was treated like one. How very dare he? Plus, what's wrong with the man? Can't he be like "most workers"?

Yes, that evil mr Bryson, who reckoned he should be entitled to the rights of an employee seeing that he was treated like one. How very dare he? Plus, what’s wrong with the man? Can’t he be like “most workers”?

I call "straw man". Bryson was one case and one set of circumstances. There are plenty of other workers who *are* happy to be contractors, just as there are some who prefer to be employees. Just because the situation doesn't fit with your political beliefs doesn't mean either party is wrong.

Actually, I'm a self-employed contractor who is happy to be; nonetheless I'm glad that in the industry in which I work there isn't a presumption that work ought to be casualised, and people - myself included - are able to test the law in the way that Bryson did, if they feel that the designation of contractor is being abused by their clients/employers.

And that employers aren't able to decide what set of rules they want to follow with their employees, no matter what the reality of the relationship. Employment and contract work are very different relationships, you can't just push people from one to the other and expect them to be happy with it because you're paying them.

Regarding Bryson vs 360: And let's not forget the real precedent - maybe 10-12 years ago, a group of cleaners took their management to the High Court for contractorising them in order to shirk holiday and sick leave... and won. That precedent formed a partial basis for the independent contractors' clause in the Employment Relations Act.

Yes, that evil mr Bryson, who reckoned he should be entitled to the rights of an employee seeing that he was treated like one. How very dare he? Plus, what's wrong with the man? Can't he be like "most workers"?

Hope you brought plenty of kerosene and a box of matches to set that straw man going. As far as I can tell (not being an employment law nerd), that case came out of a contact that was - to put it mildly - a dog's dinner and pretty much all the informed commentary I've seen has been reluctant to spin out a general precedent from a highly specific set of circumstances.

It’s not so much casual it’s more that most people working in film are only ever employed for specific periods of time on specific projects. Crew move from film to film, ie from employer to employer, following whoever has been able to raise finance.

Operating as a contractor suits most people involved. They do of course belong to guilds etc who advocate on behalf of their membership on conditions etc.

Now if the objective of the MEAA and CTU is to completely unionise the film industry along the lines of US film unions – which is what Simon Whipp wants – then that will place enormous strain on low budget films in NZ. In the US the industry is big enough to run two systems in parallel – the union films, where everyone has to be in a union and not everyone who wants gets to be in the union (closed shop) and non-union films which tend to be lower budget productions.

And we do know the objective of the US unions is stop “their” films coming to places like NZ. So making production here more difficult is certainly something they wouldn’t complain about.

Hope you brought plenty of kerosene and a box of matches to set that straw man going.

I like how we're talking about Peter Jackson scheming and lying to get a law changed that saw him lose a court case, and bringing up that very court case is an irrelevant strawman.

As far as I can tell (not being an employment law nerd), that case came out of a contact that was - to put it mildly - a dog's dinner and pretty much all the informed commentary I've seen has been reluctant to spin out a general precedent from a highly specific set of circumstances

I don't know where you have found this informed commentary, but it squares with exactly none of what I've read. To pick more or less at random, here's a blog post from the Cullen employment Law firm which says just the opposite of what you just said. Perhaps by "bad contract" you mean a contract that didn't successfully indemnify the employers against its employees, but the author of the post makes the point that "the wording in the contract is not determinative. Rather, the real nature of the relationship is what is important."

I like how we're talking about Peter Jackson scheming and lying to get a law changed that saw him lose a court case, and bringing up that very court case is an irrelevant strawman.

No dear, I think patronising people (like our host) who is perfectly happy as a contractor is a dick move. YMMV.

I'm rather short of sympathy for employers who get dragged over the judicial nutmeg grater for not doing their homework. Bryson was also perfectly entitled to seek legal redress. Never heard anyone on PAS say any different.

I don't know, yet apparently my suggesting it constitutes an offence. But mostly I'm fed up with your constant arguing even when you have nothing substantive to contribute, just veiled insults. It's a shtick that got old about 4000 comments ago.

Russell, I think you'll find that Helen Kelly was clear in the interview on Morning Report on 27 october (about 8:45 into the audio) that the actors were _never_ seeking a collective agreement (i.e., a collective employment agreement) because they were not employees and wanted to maintain their status as contractors.

What they were seeking was an agreement to collectively bargain as contractors. That fits with the resolution you cite that what was at issue was a 'collective -bargaining_ agreement' (my emphasis), that is an agreement to bargain, with contractors, on a collective basis (so as to avoid people working side by side, doing the same job, being paid differently) and _not_ a collective employment agreement.

Helen Kelly was right to claim that the actors had never sought a collective agreement. This is not playing semantics; contractors can collectively bargain without it resulting in a collective agreement (understood in NZ as an employment relationship). Actors wanted to be contractors bargaining collectively.

As far as I can tell (not being an employment law nerd), that case came out of a contact that was – to put it mildly – a dog’s dinner and pretty much all the informed commentary I’ve seen has been reluctant to spin out a general precedent from a highly specific set of circumstances

I don’t know where you have found this informed commentary, but it squares with exactly none of what I’ve read. To pick more or less at random, here’s a blog post from the Cullen employment Law firm which says just the opposite of what you just said.

If you’re implying that it says Bryson was a general precedent, or that his was a typical contract, it actually says the opposite of that:

Overall the Employment Court found that the expression of industry concerns, while relevant to the parties’ intentions, were “overstated” in Mr Bryson’s situation.

His work was distinct from normal industry practice. He had not been working on other projects for several producers. He had no investment in plant or equipment and had not operated as a sole trader.

The court found that Mr Bryson was not an independent contractor. Rather he was an employee. There was no evidence to say he had been acting as a separate business entity. He did not tender for his position. He was in a long-term position and entered the job with no relevant experience for the new position. He cannot have been said to be contracting his skills to Three Foot Six.

The fact that the contract said he was an independent contractor did not mean that he was. The contract read as though Mr Bryson was an employee despite its statement otherwise. Indeed there was a significant amount of company control.

It was an unusual contract drawn up at a time when Weta’s HR was struggling to cope with the company’s growth. Even so, successive courts all the way up to the Supreme Court, took different views on Bryson’s claim. I don’t have time to find the various decisions, but iirc they were quite clear that it didn’t embody a general precedent for the industry.

The only people who seemed to believe this could create a precedent applicable to actors were the CTU, which funded the Bryson action. Warner Brothers also joined that party, making it possibly the only thing the two sides have felt similarly about in recent weeks.

I’m not sure what you’ve been reading that says Bryson was a industry precedent rather than an unusual case, but it’s certainly not my understanding.